Another round for Prop 8 in Calif. state court?

Prop 8 proponents say the Supreme Court may want to send the case back to state court. (Washington Blade file photo by Michael Key)

Anti-gay groups arguing in favor of California’s Proposition 8 are advising the U.S. Supreme Court to send the lawsuit back to state court yet again before deciding to rule on the case based on standing — although legal experts dismiss such a request as a desperate plea.

As noted in SCOTUSblog, the request to send the case back to the California State Court is found in the reply brief that anti-gay groups, such as ProtectMarriage.com, filed on Tuesday. The request is virtually hidden within the brief; it’s found on the footnote on page 6.

The California Supreme Court has already certified in November 2011 that anti-gay groups have standing to defend Prop 8 in court. After being posed the question by the U.S. Ninth Circuit Court of Appeals, the state court determined anti-gay groups had standing to defend the ballot initiative in the wake of the decision from California officials — Gov. Jerry Brown and Attorney General Kamala Harris — to decline to defend Prop 8 in court.

But in the reply brief this week, proponents of Prop 8 assert that neither the California Supreme Court nor the Ninth Circuit addressed the issue of whether anti-gay groups have suffered “personal injury” — a quality that is used to determine standing — and suggest justices may want to return the case to state court to address the issue.

“Accordingly, it may be appropriate again to certify this question to the California Supreme Court if this Court concludes that Petitioners, despite their established authority to represent the State’s interest, must also demonstrate personal injury to satisfy Article III,” the footnote states.

The standing issue in Prop 8 is important because if the Supreme Court determines anti-gay groups don’t have standing, U.S. District Judge Vaughn Walker’s decision striking down Prop 8 would stand, allowing same-sex couples to marry in California. Because the Supreme Court has a history of limiting standing, there’s a good chance the court could rule on Prop 8 in this manner.

Doug NeJaime, who’s gay and a law professor at Loyola Law School, said a decision to send the case back to the state court would accomplish two things: delay proceedings in the case and reconfigure the standing issue in favor of proponents of the same-sex marriage ban.

“This is both an attempt to extend the time at which same-sex couples may marry in California (i.e., send it back for more litigation, rather than allow couples to marry) and a reasonable way to argue that the standing question isn’t completely resolved (and would ultimately favor standing),” NeJaime said.

But legal experts who spoke with the Blade said they don’t expect the Supreme Court to send the case back to the state court because the “personal injury” issue is now a matter of federal law, not state law.

Suzanne Goldberg, co-director of Columbia University’s Center for Gender and Sexuality Law, was among those saying it’s “extremely unlikely” the Supreme Court would once again send the Prop 8 case back to the California State Court.

“If the Supreme Court decides to address that question, it is perfectly capable of evaluating the sponsor’s injury on its own,” Goldberg said. “The court regularly makes assessments of whether litigants have a sufficient injury to proceed with a case in a federal court. This is not a question that the California Supreme Court would have to resolve.”

Goldberg added state courts have an approach to assessing standing that’s different from federal courts, so the Prop 8 lawsuit is “particularly a question where the state court determination would not carry over to the federal court.”

“That footnote seemed to me to be a desperate plea recognizing their standing argument is quite weak,” Goldberg said.

Chris Stoll, a senior staff attorney for the National Center for Lesbian Rights, was similarly dismissive about the notion of sending the Prop 8 case back to state court.

“I see that footnote as a sign the proponents of Prop 8 are very worried that the Supreme Court will decide they did not have standing to appeal and that Judge Walker’s decision striking down Prop 8 will stand,” Stoll said. “They appear desperate to find a way to avoid that result.”

Stoll said the California Supreme Court already delivered a “detailed opinion” on standing and justices are unlikely to seek additional input from the state court.

“Standing is ultimately an issue of federal law, and I believe the U.S. Supreme Court will decide that it has enough information from the state courts to resolve that federal issue now,” Stoll said.